FILED

December 17, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JEFFREY LYNN BUCKNER, ) C.C.A. NO. 03C01-9703-CC-00116

)

Appellant ) UNION COUNTY

)

v. ) HON. LEE ASBURY,

) JUDGE

STATE OF TENNESSEE, )

) Post-Conviction

Appellee )

FOR THE APPELLANT FOR THE APPELLEE 

Douglas A. Trant John Knox Walkup

900 S. Gay Street Attorney General & Reporter

Suite 1502

Knoxville, TN 37902 Clinton J. Morgan

Cordell Hull Building, Second Floor

425 5th Avenue North

Nashville, TN 37243-0493

OPINION FILED 

AFFIRMED

JOHN K. BYERS

SENIOR JUDGE
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O P I N I O N

The petitioner seeks to have a conviction for murder overturned by way of

post-conviction relief after this case was affirmed by the Court of Criminal Appeals

and after the Supreme Court denied review.

The record we have in this case is curious.

A petition for post-conviction relief was filed (apparently on June 18, 1990) in

the trial court. An issue raised was the ineffectiveness of trial counsel. The State

filed an answer to the petition on January 28, 1991, and the matter was heard on

February 1, 1991. However, no order on that hearing was entered at that time.

On March 14, 1991, a motion was filed for an extension of time to add as a

defendant another attorney who represented the petitioner on appeal from the

original conviction.

On May 28, 1991, the petitioner filed a supplemental petition for postconviction relief in which he alleged that the counsel who represented him on appeal

from the original conviction was ineffective.

On June 22, 1991, an order on the February 1, 1991, hearing was entered in

this case which stated:

A. That Petitioner failed to demonstrate the existence of “newly discovered”

evidence which was not available to him prior to or during the trial of this

cause, or which was otherwise relevent (sic) or admissible.

B. That trial counsel, James Bell, was not incompetent or ineffective during

the preparation or trial of this cause, such as would have deprived Petitioner

of any statutory or constitutional right.

Based upon all of the foregoing,

It is therefore ORDERED as follows:

1. That the petition for post conviction relief be overruled in its entirety.

2. That the record remain open for 30 days from the date hereof in order that

the Petitioner may file additional statements if desired.

3. That the State be granted 10 days from the submission of additional

statements to respond to the same.

On June 28, 1991, a motion was filed to obtain an extension of time for filing

the notice of appeal from this June 22, 1991, order, and the trial court entered an

order dated June 28, 1991, granting the requested extension of time.
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After the pleadings above set out, further motions were sporadically filed until

the case was heard again by the trial court on October 14, 1996. At the hearing of

October 14, 1996, the petitioner abandoned any claim of ineffectiveness of

appellate counsel and asked for the court to reopen the original post-conviction

proceeding for further attack upon the competency of original trial counsel. Without

specifically ruling on the motion to reopen the case, the trial court allowed counsel to

present evidence on the allegations in the original petition.

The petitioner presented as evidence his own testimony and the testimony of

a police officer, who introduced pictures taken after the event which showed wounds

on the hands of the deceased.

On October 18, 1996, the trial judge entered an order finding that the

petitioner had failed to show the ineffectiveness of trial counsel which had been

alleged in the original petition and raised in the evidence at the hearing of October

14, 1996.

The State says the appeal in this case is barred because the order of June

22, 1991, which denied relief to the petitioner, became a final order and therefore

the trial judge had no authority to grant the motion for an extension of time. 

Accordingly, the State alleged, the order of October 14, 1996, denying relief is void

and not subject to appeal.

We agree with the State that a trial judge may not grant an extension of time

to file a notice of appeal and that the order of June 22, 1991, would, under most

circumstances, become final. The proceeding of October 14, 1996, would then be

void, as argued by the State. However, in this case it is unclear whether the June

22, 1991, order was entered as a final order or as a judgment in the case; from the

record it appears the trial judge never treated it as final. We therefore conclude that

the order was not final for purposes of terminating this case, and we decline the

invitation to dismiss the appeal for that reason.

We are somewhat hampered in our review of this matter because the

transcript of what was presented by the parties at the hearing on the original petition

on February 1, 1991, is not in the record.
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We are, however, able to determine from the evidence presented on October

14, 1996 that the evidence supports the judgment of the trial court in all respects

and we find that the judgment should be affirmed.

 

John K. Byers, Senior Judge

CONCUR:

 

Gary R. Wade, Judge

 

Joseph M. Tipton, Judge